Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3

Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3

Although the Court had jurisdiction under s 90A to make a prohibition order against the Mother generally, the particular order sought would have the practical effect of preventing Cara from being placed with the Mother at the rehabilitation facility and thereby removing a placement option from the Secretary and fettering the Minister's interim parental responsibility for residence. Applying Re Josie, the Court had no power to make such an order, so the ILR's application was dismissed.

Jurisdiction
Australia
Judgment Date
20 July 2021
Procedural Posture
Care and Protection / Application by the Child's Independent Legal Representative for a Prohibition Order Under S 90 a During Care Proceedings
Outcome
Application dismissed
Legal Topics
['prohibition Orders' 'parental Responsibility' 'interim Parental Responsibility of the Minister' 'placement of Child' 'restoration Assessment']
['care and Protection' 'child Protection'] ['prohibition Orders' 'parental Responsibility' 'interim Parental Responsibility of the Minister' 'placement of Child' 'restoration Assessment']

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Procedural Posture

Care and Protection / Application by the Child's Independent Legal Representative for a Prohibition Order Under S 90 a During Care Proceedings

Legal Issues

  1. 1 ['Whether a prohibition order made against a parent without parental responsibility would indirectly fetter the power of the Minister holding interim parental responsibility.' "Whether the Children's Court had jurisdiction under s 90A of the Children and Young Persons (Care and Protection) Act 1998 to make a prohibition order against the Mother." 'Whether placing Cara with the Mother at a residential rehabilitation facility would amount to a backdoor or trial restoration.']

Ratio Decidendi

Although the Court had jurisdiction under s 90A to make a prohibition order against the Mother generally, the particular order sought would have the practical effect of preventing Cara from being placed with the Mother at the rehabilitation facility and thereby removing a placement option from the Secretary and fettering the Minister's interim parental responsibility for residence. Applying Re Josie, the Court had no power to make such an order, so the ILR's application was dismissed.

Court Disposition

Application dismissed

Orders

  • ["The ILR's application is dismissed."]